Under US immigration law when a foreign national enters the US on a K1 (fiancée) visa, he or she must marry the US citizen fiancé(e) (the petitioner) within 90 days of their arrival in the United States. After marriage they have to file for Adjustment of Status.
If the marriage is less than 2 years old at the time the adjustment is granted the foreign national will be given ‘Conditional Residency,’ valid for two years. At the end of the two years, the couple must file a “joint petition” to remove the conditions on the green card.
But what happens if everything doesn’t go as planned and the couple gets divorced while their adjustment application is pending; before the green card is granted? (i.e. the foreign national enters on a K visa, files for adjustment of status, but before the initial adjustment interview, the couple gets divorced). The issue recently came before the Ninth Circuit Court of Appeals.
- Decision of the Ninth Circuit Court of Appeals on K1 Adjustment of Status After Divorce in CHOIN VS. MUKASEY, 537 F.3d 116 (9th Cir. 2008)
- Facts of the case:
Yelena Choin was admitted to the U.S. in 1998 as the fiancée of a US citizen, and her two children were admitted in K-2 status. On February 20, 1999, Yelena married her US citizen fiancé, Albert Tapia, and on April 14, she and her children applied for adjustment of status. Almost two years later, on April 9, 2001, five days short of their second wedding anniversary, Choin and Tapia divorced.
Yelena's immigration nightmare began on August 27, 2001, when the USCIS denied her adjustment application because of the divorce, and placed her in removal proceedings. An Immigration Judge also denied her adjustment application and the Board of Immigration Appeals (BIA) agreed with the IJ. The BIA also denied Yelena's Motion for Reconsideration.
- USCIS Arguments:
The USCIS based their decision on the fact that the marriage was no longer viable. It was argued by the USCIS that a K1 visa holder is ineligible to adjust status to lawful permanent residence if the marriage ends before the USCIS adjudicates the application for his or her K1 adjustment of status.
- Petitioner’s Argument:
Yelena challenged the BIA's ruling before the 9th Circuit Court of Appeals. The principal issue was whether the Immigration Judge and the BIA had properly interpreted section 245(d) of the Immigration and Nationality Act, which holds that –
- the Attorney General may not adjust . . . the status (K visa) except to that of an alien lawfully admitted to the United States on a conditional basis under section 1186a of this title as a result of the marriage of the nonimmigrant . . . to the citizen who filed the K visa petition. (Emphasis added)
- Opinion of the Court:
On August 12, 2008, in an important immigration decision, the court held that foreign nationals who marry their fiancé after entering the United States on a K-1 fiancé visa, and who subsequently obtain a divorce prior to obtaining permanent resident status, are still entitled to adjust to resident status.
The Appeals Court held that it found nothing in the plain language of Section 245 (d) suggesting that an application that was valid when submitted should be automatically invalid when the petitioner’s marriage ends by divorce 2 years later. The Court also held that the purpose and context of § 245(d) also do not support the government's reading of the statute that requires the automatic removal of immigrants whose marriages end in divorce while their application for adjustment of status languishes in the agency's file cabinet. The Court relied on their previous holding in Freeman vs. Gonzalez, 444 F.3d 1031 and as a result of the Court's decision in Choin vs. Mukasey, Yelena's immigration nightmare finally ended.
This holding continues a long line of cases (Matter of Boromand, Matter of McKee) that hold that a marriage must only be valid at inception. Indeed, the parties do not need to be married at the time USCIS adjudicates the adjustment application.
- FREEMAN vs. GONZALEZ
In Freeman vs. Gonzalez, 444 F.3d 1031 (9th Cir. 2006) it was held that if a marriage to the US citizen was bona fide, the fact that the citizen spouse dies before the USCIS makes a final decision on the application for adjustment of status does not stop it from being approved.
The government has long refused to grant adjustment of status for K visa recipients whose good faith marriage ended in divorce prior to the adjudication of the adjustment application. It is gratifying to see that the termination of the good faith marriage through divorce need not result in the removal of the K visa holder when it is the government that takes several years to adjudicate the applications.
Prior to the Choin decision, the USCIS would have denied the application for K1 adjustment of status after divorce, since the marriage was no longer in existence. However this is no longer true, at least for applications submitted by persons who live in any of the states within the jurisdiction of the US Court of Appeals for the Ninth Circuit (Alaska, Arizona, California, Hawaii, Idaho, Montana, Oregon and Washington).
Thus, if you enter into a bona fide marriage, but unfortunately the US citizen spouse dies, or the marriage ends in divorce before the USCIS makes a decision on the application for K1 adjustment of status, don’t panic. The 9th Circuit's holdings in Freeman vs. Gonzalez and Choin vs. Mukasey may save you from deportation and allow you to adjust your status to permanent resident.If you have questions about what steps you should take in your particular situation, consult a VisaPro immigration attorney. We will be happy to guide you through the process.
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